NASHVILLE (BP) — The Ethics & Religious Liberty Commission (ERLC) has filed an amicus brief in an upcoming Supreme Court case which will consider a Texas law requiring adult websites to verify the age of their users. 

The law in question, Texas House Bill (H.B.) 1181, requires websites to verify the age of their users if at least one-third of their hosted content is considered “harmful to minors,” such as pornography. The law also requires such websites to include a warning describing the harmful medical and societal effects of pornography consumption.  

The case, Free Speech Coalition v. Paxton, will rule on whether or not the legislation violates the First Amendment by placing a burden on adults’ access to content the plaintiffs believe is protected by free speech. 

It involves an adult industry trade organization (Free Speech Coalition) and other plaintiffs suing the state of Texas to prevent the law from taking effect. Texas Attorney General Ken Paxton is named as the defendant in the case. 

The ERLC filed an amicus brief Friday, Nov. 22, in conjunction with the Southern Baptists of Texas Convention (SBTC) and the Baptist General Convention of Texas (BGCT). 

The brief explains that the advent of free access to pornographic content via the internet should cause the High Court to examine what guidelines should be in place to protect minors. 

“The exhibition and distribution of media containing obscene portrayals of sexual conduct is nothing new in America,” the brief states. 

“But in the grand scheme of history, what is relatively new is the ubiquitous access that the internet provides to such materials. This gives rise to a host of moral, social, and health concerns, not the least of which is minors’ access to these materials.”

Texas H.B. 1181 was passed in June 2023. A group of pornography companies, led by Free Speech Coalition, filed a lawsuit a month later to prevent it from going into effect. 

Baptists in Texas are committed to protecting children, which led to both state conventions’ participation in the brief.

“Churches must always fiercely stand up to protect our children from sexual immorality and pornography,” said Nathan Lorick, executive director of the SBTC. “The SBTC signed on to this amicus brief because we believe that not only is pornography wrong, offering it to children is atrocious. We support age verification and are grateful for all who have worked to protect our children.”  

John Litzler, director of public policy and general counsel for the BGCT, said, “In an effort to have courts strike down the age verification law, the pornography industry claims their content is protected by the fundamental right to free speech. They are wrong. While Texas Baptists are strong proponents of free speech rights, those rights do not include the freedom to provide pornography to minor children. We are grateful for the opportunity to link arms with our SBC and SBTC brothers and sisters to support the important and constitutional work the Texas Legislature has done to protect children in our state.”

A district court granted the group’s preliminary injunction, but the Texas Attorney General’s office appealed the ruling and the injunction was vacated by the 5^th Circuit Court of Appeals.

Paxton applauded the decision of the 5^th Circuit to uphold the law. 

“Texas has a right to protect its children from the detrimental effects of pornographic content,” Paxton said in a press release last year. “As new technology makes harmful content more accessible than ever, we must make every effort to defend those who are most vulnerable.”

The challengers came to the Supreme Court in April of 2024 asking them to intervene, and in October the High Court announced it would take up the case as part of its January term. 

The Supreme Court will rely on how it determines whether a user’s First Amendment rights have been violated.

The choice is between two methods or tests of interpretation known as the “rational basis” review or the “strict scrutiny” test. 

The rational basis method, which was used by the lower court in its decision, looks at whether or not the law is rationally related to a legitimate government interest. 

The challengers argue that the strict scrutiny method should be applied instead, which would mean it is up to the government to demonstrate that age-verification is the only solution to protect minors from harmful content. 

The ERLC’s brief appealed to the 2001 Southern Baptist Convention (SBC) resolution “On The Plague Of Internet Pornography” and the Baptist Faith and Message 2000 to illustrate Southern Baptists’ stance on the dangers of pornography, especially for minors.

“Southern Baptists believe that God gave all of humanity free choice when it comes to questions of morality. But minors often lack the developmental capacity or moral maturity to know how to exercise that free choice responsibly,” the brief continues. 

“Thus, Southern Baptists believe it is important to structure society and society’s rules to maximize the ability to educate and train minors on their social and moral responsibilities. … And the States certainly have an important role to play in this process.”

The brief argues that the lower court was correct in using the rational basis review method, and the challengers’ argument lacks historical context regarding the First Amendment. 

“As originally understood, the First Amendment existed primarily to protect political speech and speech on matters of public concern,” the brief states. 

“It was not originally understood to protect obscene expression, especially when such expression might be received by minors. To the contrary, it has been understood from the beginning of the Republic that States have broad discretion to use their police-power authority to protect minors from such expression. The Constitution has long given State policymaking a wide berth in this regard … Given this historical context, rational-basis review is the proper standard here.”

The Supreme Court will hear the case Jan. 15.

(EDITOR’S NOTE — Timothy Cockes is a writer in Nashville.)